Justice Watch: The Alliance for Justice Blog

February 2011

The Supreme Court will hear oral arguments this week in Ashcroft v. Al-Kidd, a case concerning an American citizen detained for more than two weeks in harsh conditions on the specious grounds that he was a material witness.

Abdullah Al-Kidd is an American-born United States citizen and convert to Islam who lives in Idaho. The FBI targeted Al-Kidd and his wife for surveillance and interviews during a broad terrorism investigation in the state following the attacks of September 11, 2001. The investigation revealed no evidence of wrongdoing by Al-Kidd or his wife. However, FBI agents arrested him on a material witness warrant related to an investigation of another person, and took him into custody. Following several interrogations without counsel, Al-Kidd was held for 15 nights in jails in three states with hardened criminals, and transported aboard a “Con Air” flight in which he was held in full shackles. He was never used as a material witness – the pretext under which he was originally arrested.

Al-Kidd sued former Attorney General John Ashcroft for ordering his wrongful detention. He argues that neither the absolute nor qualified immunity sometimes afforded government officials is appropriate in this case because Ashcroft’s use of a material witness warrant was merely a pretext to submit Al-Kidd to preventative detention. The Ninth Circuit ruled in favor of Al-Kidd and Ashcroft appealed the decision.

If the Supreme Court rules in Ashcroft’s favor, it will enable government officials to circumvent fundamental constitutional protections by detaining individuals indefinitely without access to an attorney simply by claiming they are needed as material witnesses.

There have been dozens of stories written in the past few weeks about whether or not several Supreme Court justices have been upholding the high ethical standards we expect of our nation’s highest court. The reports have looked at the justices’ participation in political activities and fundraising events, as well as questions related to whether justices should recuse themselves — or should have recused themselves — from cases before the Court.

Disturbed by these accounts, 107 law professors from 76 law schools all across the country have come together to voice their concern and suggest solutions. In an open letter to the chairmen and ranking members of the House and Senate Judiciary Committees, the professors lay out weaknesses in the ethics rules and recusal process governing Supreme Courts justices, and propose reforms, including that the justices be made subject to the same mandatory code of conduct that governs all other federal judges.

The law professors’ letter is not just a wake-up call; it’s also a starting point. This unbiased, non-political, diverse group of experts came together to propose a common-sense solution aimed at bringing more transparency to the Court and restoring public confidence in its deliberations and decisions.

The letter recommends four concrete reforms:

Apply the Code of Conduct for United States Judges to Supreme Court justices;

Establish a set of procedures to enforce the Code’s standards as applied to Supreme Court justices;

Require a written opinion when a Supreme Court justice denies a motion to recuse; and

Determine a procedure, or require the Court to do so, that provides for a review of a decision by a Supreme Court justice not to recuse himself or herself from a case pending before the Court

The letter, along with news articles and other resources on Supreme Court ethics, can be found online at the Alliance for Justice website.

We expect our courts to be impartial and independent – it’s essential to the public’s faith in the judicial system. That’s why federal judges must adhere to a Code of Conduct that requires judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” and explicitly bans political activity.

Shockingly, these rules do not apply to the Supreme Court.

Likewise, when it comes to deciding whether or not to sit on a case in which his or her impartiality has been called into question, a Supreme Court justice accused of bias has the final say – there’s no consultation, no explanation, and no appeal.

Protecting against even the appearance of bias is particularly important for the Supreme Court, as its justices are subject to the most public scrutiny and their decisions have the widest impacts. Recent activities by Supreme Court justices have called their impartiality and independence into question, undermining public confidence in our highest court.

Tell Congress to hold hearings on judicial ethics. It’s high time that justices of the Supreme Court had to follow the same ethical rules as every other federal judge.

More than 100 ethics and professional responsibility law professors have signed a letter to the House and Senate Judiciary Committees, calling for Congressional hearings to examine this issue and for legislation that would close the gap between the ethical standards applied to lower court judges and Supreme Court justices. Click here to learn more about Supreme Court ethics reform.

Supreme Court justices should not be above ethical rules. Join us and tell your representatives in Congress that the same rules that apply to all other federal judges should apply to Supreme Court justices!

Yesterday, President Obama announced that the Department of Justice would no longer defend against legal challenges to the discriminatory Defense of Marriage Act (DOMA). It’s an acknowledgment of what many already knew: that DOMA is unconstitutional and un-American. On its own, that’s a big step for equality in this country

But it also means government lawyers will no longer spend time or taxpayer money fighting to keep millions of Americans from having the right to marry. The effort put into upholding DOMA was a stain on the American legal system, and its end marks a turning point in the fight for equality.

The law is still on the books, and the fight to end legalized discrimination in America will continue, but yesterday’s decision is an important victory.

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